The Ike Brown Case: Is the DOJ About to Fail Another Race-Based Test?

Last week, I testified under oath that pervasive and open hostility exists within the Justice Department towards race-neutral enforcement of voting rights laws. This week, we will all learn a great deal more about the Justice Department’s unwillingness to enforce voting laws equally and in a racially fair way.

To the many who know firsthand of the existence of this hostility, the Department’s current denials seem absurd, if not deceitful. I have urged the advocates of these positions -- of which there are many inside and outside the DOJ -- to come forward and openly engage in this debate so millions of Americans can hear their arguments for why all Americans should not be protected under the Voting Rights Act by the Justice Department. So far, silence. Even the NAACP registered a “no comment” to a Philadelphia Inquirer columnist last week. We know what that usually means.

But this week we should get some clarity. And I’ll wager that Americans aren’t going to like what they hear.

This story hails from rural east Mississippi: majority black Noxubee County is home to Ike Brown, one of the most lawless purveyors of racial discrimination the nation has seen in decades. (I have written in greater detail about the racially motivated lawlessness Brown used to victimize minority white voters in the county.) Brown canceled ballots cast by white voters. He stuffed the ballot box with illegal ballots supporting his preferred black candidates. He deployed teams of notaries to roam the countryside and mark absentee ballots instead of voters. He allowed forced assistance in the voting booth, to the detriment of white voters. He threatened 174 white voters by declaring that if they tried to participate in an election, he might challenge them and not let them vote. He publicized the 174 names.

Brown ran the primary elections because he is the Democratic Party chairman. At the trial, a woman on Brown’s list testified that she was too afraid to vote because she thought she might be arrested.

The federal court found that the publication of the list of 174 names was an illegal form of intentional racial discrimination. The United States district court held:

The question is whether Brown's action with respect to this list of 174 voters was actuated by these party loyalty concerns or whether this was pretext for a true purpose to discourage white voters from coming to the polls, or some combination of the two. The court has carefully weighed the evidence and finds that while party concerns were a factor in Brown's actions, race played a role as well. ... In sum, the court is of the opinion that Brown had the names of these white voters published in part because of party loyalty concerns, but also as an attempt to discourage white voters from voting in the 2003 Democratic primary.

Brown’s overall behavior was so outrageous that the court stripped him of all authority to run elections until 2012, and gave the power to a former justice of the Mississippi Supreme Court as a special administrator. The remedy was unprecedented, but upheld on appeal because of the brazen lawlessness of Ike Brown.

Fast forward to 2010, to the Eric Holder Justice Department.

Every change in voting in Mississippi must be submitted for approval to the DOJ voting section -- where I worked for five years -- under Section 5 of the Voting Rights Act. Section 5 gives the DOJ power to object to any change motivated by a discriminatory racial intent or with a discriminatory racial effect in nine states and portions of seven. Changes to the law in 2006 made it clear that any discrimination would suffice to trigger an objection under the act.

Right now, the Holder Justice Department has a submission from Ike Brown to allow him to do precisely the same thing he tried in 2003 -- prevent people from voting based on their party loyalties.